Health and Social Care Bill
Baroness Williams of Crosby Excerpts(12 years, 11 months ago)
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Baroness Thornton
My Lords, I also speak to my other amendments in this group. Over supper my noble friend reminded me that the late lamented Lord Carter, a previous Government Chief Whip, used to say to Ministers and others that if we needed to save time, the thing to do was to speak only from every other page and see if anybody noticed. What I intend to do is to try and speak from every other paragraph.
These issues deal with the serious potential conflicts of interest that GPs will face in their new role as commissioners of health services. When this group of amendments first started out it contained only two amendments but it has now, quite rightly, grown substantially to address the major concerns of transparency, integrity and patient confidence and the issue of trust that must be addressed in their new role. In passing, I would say that the publication of the Government’s recent draft guidance on commissioning, Developing Commissioning Support: Towards Service Excellence, in effect decrees that by 2016 the real work of CCGs will be outsourced, presumably to large private providers, which makes me start to question what is left for CCGs to worry about. However, the issue that these amendments deal with is a fundamental issue of the Bill.
We all have high regard for our GPs and we trust them as experts and advisors. We know from the evidence that they do a cost-effective and good job. Our national system of GPs may be quirky, half in and half out of the NHS, but it works. At its best, it is the very best system in the world.
We are concerned that the Bill endangers the trust that patients have for their GPs and, essentially, these amendments seek to explore and to test that. GPs are going to be decision-makers across the whole breadth of commissioning, making decisions about priorities and standards, things that may often be unpopular, and reconfigurations of service. They will handle huge amounts of money, own budgets and get bonuses for good financial performance. So patients need to be assured that they can continue to trust their GP and that their GP will always act in the patient’s best interest. This concern has been flagged up by the BMA and the Royal College of General Practitioners, so I hope that the Minister can tell the House how we will be able to protect the image and reputation of our GPs after the first CCG goes wrong. Amendment 156 starts with the obvious necessary safeguard that providers of primary medical services who have a direct or indirect financial interest in the provision of services that a CCG is required to provide must not be members of the CCG. Amendment 161 is also key in requiring the Secretary of State to issue guidance which must be incorporated into CCG constitutions on how conflicts of interest must be dealt with by consortia as part of their decision-making. Transparency and clarity about how potential conflicts of interest would be managed is essential if the confidence of the public is to be maintained.
Openness and transparency are supported by Amendment 176A, requiring CCGs to maintain a publicly accessible register of all potential conflicts of interest of individuals involved in any part of their commissioning process. Taken together, Amendments 176A and 224 reinforce this, and call for regulations to stipulate that no provider should be a member of a CCG if they have any financial interest in the provision of any service the CCG is required to commission; in other words, open book accounting.
We do not think it is enough, as Amendment 228 proposes, for a CCG member merely to declare their financial interest in a commissioning decision being taken by their CCG, or absent themselves from decision making on that provider. We expect our councillors to operate under this regime. We should expect other people responsible for public money to do the same. Indeed, this transparency and openness, and the declaration of interests, should be extended to their families, in the same way that it is for other public servants.
Finally, I want to underline that we recognise that extending GP commissioning and setting up CCGs has the potential to give GPs freedom to innovate, improve services and use commissioning to develop new models of care in the interests of the communities they serve. The safeguards against conflicts of interest proposed in these amendments are not designed to shackle CCGs. As I have said, the Department of Health commissioning guidance already does that. The safeguards will ensure that they abide by the reasonable rules, regulations and codes of practice that we would expect of any statutory body responsible for taxpayers’ money worth millions of pounds.
The public needs to be assured that robust governance arrangements are in place for commissioning consortia, and that conflicts of interest will be managed effectively. I beg to move.
Baroness Williams of Crosby
My Lords, I have a great deal of sympathy with the intention behind this amendment. Noble Lords will remember that from the very beginning of the discussion about this Bill, there has been a great deal of concern about the conflict of interest that could so easily arise. Many of us recognise that the relationship between patients and general practitioners crucially depends upon that relationship being one of trust. The same will apply, if the commissioning groups work well, to the relationship between them and the patients who are within the practices of which they are part. So I sympathise very much with what the noble Baroness, Lady Thornton, has proposed, and also with what the noble Baroness, Lady Finlay, has proposed in Amendment 161.
Our concerns on this side of the House are not with the whole motivation behind this. We believe that that is extremely important and we completely share it. It is our feeling, rather, that the remedies are not adequate to the scale. We feel, for example, that one of the weaknesses of both amendments is the lack of any effective sanctions against those who breach what would be a relationship of trust. At the moment there is not provision within the Bill for effective sanctions, which can be used to ensure that these high-minded and perfectly proper principles are lived by.
The Nolan principles have been very effective in local government—as we all know—and increasingly effective in national Government. There are references to those in the course of the Bill, but there is no specific determination that members of the partnership groups or the CCGs would be dealt with, if they were in breach of the requirement that they should not ever put their own interests ahead of those of their patients.
I suggest to the noble Baronesses, Lady Thornton and Lady Finlay, and her associates in moving these various amendments, that they would look at the amendment we have put down—and I suggest this with due humility—which effectively brings into practice powerful sanctions. We believe these will be effective in ensuring that this relationship of trust is upheld, and also that powerful requirements lie on every CCG, as well as on the board itself, that it would be absolutely clear that all interests must be declared publicly.
These will ensure that once people’s names are on the register, and they have made a declaration of the appropriate kind about their own interest never being put forward as the reason for a decision, there are then effective measures that will enable the whole issue to be dealt with in detail, with appropriate requirements of sanctions and of effective punishment for those who breach them. We believe this to be absolutely central to the working of the clinical commissioning groups and to the whole relationship of doctors to their patients.
So, with those few words, I hope I can persuade the noble Baronesses, Lady Thornton and Lady Finlay, to have a look at the proposals that we have put forward, which, I am pleased to say, have at least to some extent the support of the noble Baroness, Lady Finlay.
Baroness Finlay of Llandaff
My Lords, I certainly support the amendments tabled by the noble Baroness, Lady Williams, who has just spoken, and they go further than the amendments to which I have added my name. I would just draw the attention of the House to the conflicts of interest guidance from the General Medical Council, which makes it quite clear that doctors,
“must be honest in financial and commercial dealings with employers, insurers or other organisations or individuals”.
It goes on to say:
“If you have a financial or commercial interest in an organisation to which you plan to refer a patient for treatment or investigation, you must tell the patient about your interest”.
I would also remind the House that the ultimate sanction is to be struck off, and that if you are struck off, you lose your livelihood. I have a concern that when it comes to the implementation, warnings may actually be issued rather than stronger sanctions taken against those who might breach such guidance, because this is guidance, and it is therefore subject to interpretation.
This whole group of amendments has really gone to the heart of the problem of conflicts of interest, both for the individual general practitioner, who would be on a clinical commissioning group, but also their families and all those others around. It may be friends of theirs, who they know really well, with whom they are inclined to place some commissioning contract, or enter into some arrangement. There is a really fine line between having a personal interest, and going to that person because professionally you think that they are the best person to do the job.
Of course, I will say as a doctor, we all know the doctors that we would like to be referred to, and we all know the people who we want to work with in our teams. That is human nature. It is a mixture of competence and attitude, but there is also something about having a shared set of values, and so on, because you tend to gravitate towards people who share the same set of values as yourself. The highest principles and values would of course fall, I would hope, outside of the conflicts of interest, but financial interest is a really difficult one.
While I would suggest that none of these amendments are absolutely perfect, this group of amendments illustrates the fact that we need to come back to this at Report with a definitive amendment that really crystallises the whole problem around conflict of interest in commissioning.
Baroness Williams of Crosby
My Lords, I congratulate the noble Lord, Lord Hunt, particularly on Amendment 160A. The idea that patients whose GPs are serving on the Commissioning Board, or are part of a commissioning group which represents that board, should be consulted and we should hear what their own experiences have been, is innovative and interesting. He should be congratulated on putting it forward. It means involving patients as individuals in their own assessment of the service that they have had. Time and again the Bill reflects the demand that that should happen—no decision without me, and so on. This actually makes that real. It gives the words flesh, and I congratulate him on that. It is quite an exciting idea and I hope that it is one that will commend itself to the Government, given the Government’s wish to involve patients.
I am not so happy about Amendment 163B. I fear that the opposition Front Bench has not taken on board as much as I hoped that it might the idea that regulations should not go straight to Parliament, even if they are affirmative, but should go by way of the Health Select Committee. The noble Lord will be familiar with the argument—that the Health Select Committee has a huge range of expertise and knowledge. As a former Minister he will know—as well as I or the noble Baroness, Lady Thornton, knows—that the regime of regulatory scrutiny is not very effective. If there is an individual Member of Parliament in another place who knows a great deal about it and is concerned about it, you can have a real debate and that real debate can affect the outcome with regard to regulation. However, nine times out of 10, there is no great debate. In the case of the negative resolution procedure, there is often no debate at all.
I fear that this is a very weak safeguard for the huge amount of regulation that is built into the Bill. I therefore hope that I might commend to the House, and not least to the opposition Front Bench, the idea of looking again at the proposal, which is also radical and new. It is an idea that really ought to commend itself to those of us who believe strongly in accountability to Parliament and in the need to strengthen Parliament’s power vis-à-vis the Executive across the whole world.
Lord Hunt of Kings Heath
My Lords, perhaps I can come back to that. On Amendment 160A, I am grateful to the noble Baroness for her support. I am not even sure that I got it right. I am also trying to get at the fact that so much is happening now without any consultation. The CCGs are essentially being decided by the system and then at some stage there will be a formal application process. I am long enough in the tooth in the health service to know about NHS consultation. Frankly, we all know that the traditional NHS consultations make the decision and then consult. I fear that, with CCGs, this is what is happening. While I welcome the support for the involvement of the public in a formal application, I find it perplexing that so much is now being decided and that the public are not involved at all.
I listened to the noble Earl before supper talking about this being bottom up. That is not what is happening. I do not think that he understands quite how much this is being driven by the centre. It is quite extraordinary. You can call it guidance, but putative CCGs are being given such clear steers about what will be acceptable. I feel that we will reach a situation where, at some point, it will all be a done deal and the consultation will simply not be realistic.
On the noble Baroness’s comments about making the regulations affirmative, I accept that, even if they are affirmative, there is a limit to what parliamentary scrutiny can provide—although that does provide some safeguards. I would be interested in debating the idea of giving the Health Select Committee a role, although excluding your Lordships’ House from it would be a problem. I say to the noble Baroness that I think it a pity that the House did not adopt my suggestion about a mandate for a kind of national policy statement approach. There is an argument for having a more interactive debate, if you like, about some of these matters. I very much take to heart her constructive comments on this and the Select Committee role. It could be a very useful debate for the future.
Health and Social Care Bill
Baroness Williams of Crosby Excerpts(12 years, 11 months ago)
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Baroness Williams of Crosby
My Lords, the Department of Health will be aware that with a freedom of information request there are always considerable burdens on those who argue that the information should not be conceded. Has the Minister given any thought to the possibility of a limited redaction of the report rather than not making it available at all, or alternatively whether there are parts of it that he feels could be made available so that the House can consider more deeply the issues that are coming up? I share the view of the noble Lord, Lord Campbell-Savours, that on the issue of how Parliament handles the legislation and the implications for the transition, certain things from the register might be useful, although I recognise that some extreme cases might be picked up by the tabloids and be changed into sensational reporting. Could the Minister possibly consider that qualification more seriously than we have been able to do so far?
Baroness Finlay of Llandaff
My Lords, I would be grateful if the Minister could let us know whether the department considered the BMA resolution in council at the end of last week to now oppose the Bill and campaign against it, when the BMA was coming to its decision to appeal against the release of the information. If not, will it be considered in the next steps the Government take, given that it signals a major loss of confidence in the Bill by the BMA?
Baroness Thornton
My Lords, perhaps I may speak to the amendments in this group which are in my name. First, Amendment 110A concerns NICE guidelines and is very much like that tabled by the noble Lords, Lord Newton and Lord Butler. In fact, theirs may be even better than mine so I intend to say no more than that we are interested in the Minister exploring this issue, because those noble Lords both more than adequately covered the points that need to be made in that regard. I am also very pleased to support the amendments in the name of my noble friend Lady Royall and to put my name to those, because the role of specialist nurses is extremely important.
Amendments 118, 119 and 120 concern the duty of the board to reduce inequalities. Proposed new Section 13G of the 2006 Act states that the board must,
“have regard to the need to—
(a) reduce inequalities between patients with respect to their ability to access health services;
(b) reduce inequalities between patients with respect to the outcomes achieved for them by the
provision of health services”.
This seems a rather narrow definition concerned solely with health services, which I assume flows from the continual and overriding responsibility of the Secretary of State for tackling health inequalities. I would be grateful if the noble Earl could confirm to the Committee how the Secretary of State intends to tackle health inequalities—what information he will need, where he will get it from and how those decisions will then be moved through the proposed structures of the National Health Service Commissioning Board, the CCGs and so on.
Surely, the health and well-being boards would want to have some involvement from the NHS on health inequalities, so Amendment 118 seeks to ensure that the board has health inequalities in its remit. I particularly refer the Minister to the letter from the NHS Future Forum to the Secretary of State on 17 November where it devoted much attention to the NHS role in improving public health and made its claim that the NHS must design its services in a way that both promotes good health and prevents poor outcomes. It is thus important that the legislation provides sufficient leeway to allow the NHS Commissioning Board to do this and that legislation relating to health inequalities is not confined solely to the provision and commissioning of services.
What is also important, in coming to my Amendment 119, is that funding to the clinical commissioning group reflects the deprivation levels within its area. Can the Minister tell the Committee whether there has been a risk assessment on the issues of funding? What risks has the department found that go with the levels of funding that might be made available on the basis of deprivation levels within areas?
Of course, the decision of the Secretary of State not to make clinical commissioning groups area-based is a serious problem in ensuring a population base for commissioning, but it will be doubly important to ensure that clinical commissioning groups with large numbers of deprived patients receive financial support. I would be grateful if the Minister could spell out the intended principles behind the funding associated with clinical commissioning groups.
On Amendments 110B, 127ZA and 190AA, which concern maternity services, the noble Baroness, Lady Cumberlege, has adequately covered the major concerns about those services and we would be keen to support her amendments. I am grateful to the Royal College of Midwives for its briefing on these amendments. My only questions are about maternity networks and the recognition of their potential contribution to the type of maternity care and providing clinical commissioners with expert guidance and advice on driving up standards.
The Committee will be very pleased to hear that I do not intend to share any birthing stories. On the other hand, I am concerned. Without a national standard for maternity services, how will the new commissioning arrangements avoid significant variations? We know, for example, that there is a significant variation between trusts in the number of home births that take place. We can explore the reasons for that, but I would like to know how the new structures would deal with such variations and how that would be reflected in the work of the National Health Service Commissioning Board.
Baroness Williams of Crosby
My Lords, I have Amendment 112 and 113 in this group. I have a comment regarding the excellent speech of the noble Baroness, Lady Cumberlege, and would like the Minister to reply to it. NICE has suggested that all women expecting babies could have the right to consider the possibility of a caesarean birth. Before the choice is finally made, will that be associated with advice from doctors indicating that caesarean births are certainly not as straightforward as some people believe them to be, and for cosmetic reasons may be deeply regretted afterwards? I was a little worried that NICE had given this green light, as it were, to caesarean births without associating it with any form of counselling to the mothers concerned, not least because, as many people in this House will know, the outcomes in terms of morbidity and infant mortality are not as good as people imagine them to be in comparison with a normal birth. Perhaps the Minister could say something about that. Perhaps the noble Baroness, Lady Cumberlege, could also say something about it when she responds on her useful and important amendments, to which I hope the House will give an extremely warm welcome.
Amendments 112 and 113 are about strengthening the language about health inequalities. On that issue, we have had a helpful letter from the noble Earl, Lord Howe, dated 24 November, in which he sets out in detail some of the steps that will be taken, not least the creation of the Institute of Health Equity, to deal with health inequalities. My question is rather a big one but it boils down to the old problem of how one ensures that these worthy and excellent intentions are actually carried out.
The House will remember that new Section 13F of the 2006 Act proposed in Clause 20, which deals with the autonomy of clinical commissioning groups from the Commissioning Board and restricts the board’s actions in terms of having to bear that autonomy in mind, was put into a different set of considerations—the consideration of the whole of the responsibility of the Secretary of State and the responsibilities of the boards—under the headings of Clauses 4 and 10.
All of this means that we are still debating these issues without being clear about where responsibility for them ultimately lies. I do not propose to go over that ground again, but it is appropriate for this debate to notice that the whole set of duties that are laid out in detail—and to which this debate will undoubtedly add as it lays down further duties for clinical commissioning groups and the board as a whole—in a sense therefore depends upon the outcome of those discussions about the constitutional structure. That matters because we need to bear it in mind all the way through our consideration of the duties that are laid upon clinical commissioning groups.
What makes me, to be honest, even more concerned is that I recently read the discussion paper The NHS: Developing Commissioning Support, which was quite improperly, no doubt, leaked on the internet. My attention was drawn to it by a couple of doctors who had access to the internet. The paper sets out in detail the ultimate objective of moving towards a commercial market in the health service and sets it out under a considerable number of different headings. For example, there is a specific mention in this report that,
“Clinical commissioning groups will have a statutory freedom to secure the commissioning support from wherever they want”.
It goes on to say that the commissioning support should be given in a vibrant, commercial market. What worries me about all this is that I am not at all clear—and never have been in our long debate on health—about what the ultimate goal is. I suspect that we are discussing two things at the same time. One is the attempt to keep improving the existing NHS, sometimes by an extraordinary degree of micromanagement—from this House, I have to say. The other is the determination of many people in this House to ensure the safety and continuation of the NHS which is free at the point of need and which is available to people regardless of their ability to pay. Somewhere along the line and at some point, we really have to be clear what we are talking about. I do not know whether others taking part in this debate share my sense that we are walking in without knowing the constitutional responsibilities and quite where we are going.
I commend my two amendments. They both strengthen the words on equality of health outcomes. I congratulate the Government very much on establishing the Institute of Health Equity and carrying forward the detailed research we are now doing on lifestyles and many other things, which are important and which I am sure the whole House will applaud. However, I have to raise the big question about destinations. I hope that at some point before we abandon the Committee stage, we will have a clearer view about the Government’s ultimate destination: whether it is to retain an NHS; whether it is to make it more open to innovation and other contributions from the private sector, with which many of us would certainly not disagree; or whether the ultimate outcome is to move towards a commercial market system, this being essentially a transitional stage.
Lord Turnberg
My Lords, this is a disparate group of amendments. I support a number of them. Some seem to be counter to others, but I hope that they will come together at some point. Amendment 110A seeks to strengthen the need to take into account the guidance from NICE. From time to time, NICE faces someone complaining about the way it goes about its business. Sometimes patient groups suggest that it is taking its time or is working against their best interests. The pharmaceutical industry complains from time to time that it takes too long and maybe gets things wrong—perhaps that is a good thing on behalf of NICE. Others complain about the methodology that NICE uses, using QALYs—quality-adjusted life years—as its measure of whether a drug or treatment is effective. Despite all that, I believe that NICE does a marvellous job, as do many who know what it does. It makes sure that the suggestion of treatments is based on clear, independent evidence of their effectiveness. Its approval is something of a kitemark for the standards that GPs and PCTs should follow and the system is envied across the world. There are others trying to emulate NICE.
Health and Social Care Bill
Baroness Williams of Crosby Excerpts(12 years, 11 months ago)
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Baroness Williams of Crosby
My Lords, I remain puzzled by these amendments from the Labour Benches because it seems quite clear that the purpose of the provision was to make sure that the commissioning groups and the board would not use their considerable influence and power to change, for dogmatic reasons, the balance between private and public sector provision. That must be right. It must be right that only quality and the response to patients’ needs should determine what that balance is. I very much welcome this provision. I thought it was an important safeguard against anybody seeing the Bill as having a particular dogmatic purpose. I was quite surprised that the Labour Front Bench took a different view and put down these amendments. It seems as if it was determined to find some flaw in this provision and it is a provision that is intended to show genuine commitment to a level playing field. It is perfectly proper for the Labour Front Bench to pursue questions about the provision but it is quite clear that it refuses to take the provision, even for a moment, at face value.
I have one or two questions. I know that the hour is late so I do not intend to keep the House for more than a moment or two, but there are some interesting questions to raise. One question was about the position with regard to the partnership that has been advocated by the Minister in other parts of this Bill and the deliberate attempt to reach partnerships between the private and public sector. For example, the private sector in its role of innovating and coming up with new ideas would be very properly in some cases partnered with a public sector body, such as a clinical commissioning group. How does the Minister see that as compatible with the wording of the Bill?
The wording of the Bill is pretty clear. It relates first to the board and then to Monitor and makes it plain that in both cases those boards should not use their particular powers to advance the cause of one side or the other. Therefore, I found it puzzling that this set of amendments should be tabled—in particular the attempt to decide that Clause 144 should not stand part of the Bill.
With those words, I wait for the Minister’s reply. I do not want to delay the Committee, but I have to say that I was genuinely puzzled by the Labour Front Bench’s decision to put down amendments of this kind and to question Clause 144.
Baroness Thornton
I think that I explained to the noble Baroness earlier today that these are probing amendments. When we received the briefing from ACEVO, we were very concerned, and that is why we tabled the amendments. It is very important for those of us who have been promoting the voluntary sector all these years that we find out what the truth is. They are probing amendments; there is no intention at all to press them, and I said that from the outset. They are to explore the meaning and the effect of the provisions. Sometimes amendments can have unintended consequences. I hope that the noble Baroness will accept that this is not partisan; it is a genuine effort to get some explanation for how this part of the Bill might work.
Baroness Armstrong of Hill Top
My Lords, I might have more to say then too. However, we are dealing with what the Bill actually says and with what the Government said at the end of the pause. They said then that the Bill would “outlaw” Ministers arguing for an increase in the size of the three sector providers—public, private or third sector. That means that they want to preserve aspects of the third sector and of the private sector. However, it also means that it freezes in aspic what is there. I do not think that is in the interests of anyone.
I ask the Minister, so that he can perhaps come forward with replies to this in thinking about the next amendment: what is going to happen to the voluntary sector and social enterprise programme that the department currently runs? It was set up to maximise the extent to which third-sector organisations were able to achieve their full potential. There is also the social enterprise investment fund, which provides investment for social enterprises to start up, grow and develop in order to develop NHS services. There are real rumours that this is being finished and that it will not continue into the future.
Baroness Williams of Crosby
Might the noble Baroness consider more closely the actual wording of Clause 144? It refers to the Minister not being able to choose a variation for the purpose of choosing that variation; it does not in any way rule out the possibility of choosing that variation for the purpose of providing better provision for patients. It distinguishes between a direct political purpose and the purpose of doing what we all want, which is to provide a better service to patients. A great deal of what has been said in this short debate about the effect on the voluntary sector would therefore not stand up to very close and careful investigation.
Baroness Armstrong of Hill Top
My Lords, that is precisely the sort of reassurance and clarity that we are seeking from the Minister. At the moment there is real anxiety out there about this; whether we like it or not, that is the reality, and it is our job to tease out exactly what Ministers mean because they have given different messages about this.
The third area that I ask the Minister to be clear about is the future of the Health and Social Care Volunteering Fund, which is important as a means of supporting volunteering in the National Health Service. All three of those aspects are currently in the Department of Health and I want to see them continue. I would like some reassurance from the Government that they will continue. That would reassure me and, I am sure, people outside that the Government will continue to see the role of the voluntary sector grow in areas where it is most appropriate for it so to do.
Baroness Williams of Crosby
The noble Lord will know that the amendment moved by the noble Lord, Lord Rooker, has in it some very serious considerations about how to build up the voluntary sector and indeed build up the whole relationship of the community to the National Health Service. However, in all fairness, from the very beginning the Minister has talked a great deal about the role of the community and about the way in which the National Health Service can become more open to patients, or more open to those local community forces that can assist it in bringing out the best possible outcome for patients. With respect, it is a little unfair for the Opposition to talk as if that had not happened.
Indeed, if one looks closely at the motivation of the Bill—it is well known that I have considerable reservations about some aspects about it—one of the aspects that I like the most is the quite clear commitment to the idea of the National Health Service being in partnership with local authorities, health and well-being boards, and the healthwatch system and so forth. All of these organisations are new and all are about involving citizens, voluntary organisations and community organisations in the best possible delivery of healthcare. I have to say that the highly centralised control that was exercised in the early stages of the Labour Government, and indeed right up until 2007, really is quite strikingly different from the attempt to decentralise and create partnerships between local authorities, citizens’ groups and the National Health Service itself.
With great respect, the Minister would be quite fair in saying that he has tried to make the point, in almost all the debates that we have had on this issue, of the importance of the voluntary sector and of the community that can protect and help the National Health Service. Although I would readily agree that the noble Lord, Lord Rooker, has made some very important and germane points which should be addressed, I do not want to give the impression abroad that somehow the Government are less keen on the voluntary sector than the Labour Government were in their day.
Earl Howe
My Lords, I have had a lot of helpful comments in the debate and very much welcome the chance to reiterate the Government's support for the work of the voluntary and community sectors. The noble Lord, Lord Rooker, is absolutely right; these organisations have a very important role to play both in the provision of support to patients and their families, carers and communities, and increasingly in the provision of services. It is right that the NHS Commissioning Board and clinical commissioning groups should be able to provide funding to support them in this work. The noble Lord suggested that the effect of the Bill would be to snuff out the third sector. I assure him that that is not so.
I will quickly clarify the effect of the duties relating to market share. We want the NHS to operate around the needs of patients. That is why patients’ interests are at the heart of the Bill. Healthcare services should be commissioned on that basis and not on the basis of who is providing the care. This will not prevent a range of work that may go on to support the voluntary sector where it does not directly provide healthcare services. I believe that the Bill goes further than any previous legislation to remove barriers standing in the way of a fair playing field. I do not and will not shy away from our commitment to see a vibrant third-sector market in the NHS.
I will provide a little detail and flesh on the bones. The Bill already provides the board and clinical commissioning groups with the power to make payments through loans and grants to voluntary organisations that provide or arrange for the provision of similar services to those that the board will be responsible for commissioning. This power mirrors the power that the Secretary of State has under Section 64 of the Health Services and Public Health Act 1968, currently exercised by strategic health authorities and primary care trusts. The power would not apply only to service provision. The board and clinical commissioning groups may also want to fund work that will assist in the effective commissioning of services. For instance, the board may provide funding to voluntary organisations with particular expertise in the provision of support to people with rare specialist conditions to guide its approach to commissioning those services. Grants and loans of this sort will support innovation and vibrancy in the health sector and we want to encourage this.
I reassure the noble Lord that we expect that the NHS Commissioning Board and clinical commissioning groups will also continue to uphold the principles set out in the compact. This remains a key agreement between the state and the voluntary sector. Local commissioners should make every effort to engage their voluntary and community partners in discussion on priorities and the allocation of resources, working in a way that is transparent and accountable to local communities. I know that that is already happening at the level of pathfinder CCGs.
The noble Baroness, Lady Armstrong, chided the Government by saying that their rhetoric had not been followed through into action. I say to her that voluntary sector grant schemes are still in place. These are the innovation, excellence and service delivery fund, the strategic partner programme, opportunities for volunteering and the health and social care volunteering fund, under the collective umbrella of the Third Sector Investment Programme. The total value of this for the current year is £25 million. It will continue in 2012-13, which will ensure the continued support of its member organisations to build their capacity and capability to make high-quality and responsive contributions to support health and well-being in our communities. A £1 million financial assistance fund opened on 20 December last for organisations that make a significant contribution to health, public health and social care, but which are most at financial risk. In addition, the department contributed to the Office for Civil Society’s transition fund.
As I say, the department greatly values the voluntary sector’s contribution and our ongoing support for the grant funding programmes through this year recognises the increased role of the sector in helping us renew our efforts to build strong, resilient communities and improve health and well-being outcomes. What I cannot precisely do at the moment is say how much money will be available next year. Decisions about budgets for 2012-13 will be made in due course and we will work within the principles of the compact in making those decisions.
I hope that what I have said has served to reassure the noble Lord, Lord Rooker, that we are serious about this and indeed I hope he will accept from me that nothing in the Bill interferes with our purpose to support this important sector. Our policy is that services should be commissioned from the providers best able to meet the needs of patients and local communities. That is the key. Unfortunately, the wording of his amendment, if taken literally, would run counter to that principle, which is why I am afraid I cannot accept it, but I hope he will find some comfort in what I have said.
Baroness Williams of Crosby
Can the Minister say a word or two about the building up of capacity, which seemed a very important element in the amendment tabled by the noble Lord, Lord Rooker, and whether there will be any other method by which the capacity of the voluntary sector could be developed and increased?
Earl Howe
I have already outlined a number of funds that are held centrally to enable that to happen. That is happening at the moment. I am pleased to say that we have had very encouraging take-up of those funds. The Social Enterprise Investment Fund has been in place for some time. What I cannot do at the moment is say how much money will be available next year. A lot of these funds will continue in the next year and we will be making announcements in due course. However, we are clear that there is a role for this type of lever to ensure that social enterprises and voluntary sector organisations can be supported in the way that the noble Lord, Lord Warner, indicated was important—and I agree with him.
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Lord Harris of Haringey
My Lords, I confess that I am something of a cynic about some of the proposals in the Bill. I am a great believer in the principle of localism, the local determination of services and local decision-making. Therefore, in principle I would applaud any Government—even this Government—who desire to devolve responsibility for various things to local authorities and, in this case, local commissioning groups.
However, my cynicism kicks in because what I suspect is happening here—I suspect that it will happen in other service areas—is that Ministers are cynically saying, “We are leaving these responsibilities to you, the local bodies concerned. We are very happy for you to make all these decisions. The snag is that we will not provide you with the resources to meet all the expectations that the public, who rely on those services, might legitimately have hoped to be provided. However, we are not taking these decisions. We will not be involved. It is a matter for local determination”. To be honest, I think that is what underpins much of the localism, devolution or autonomy agenda that we are seeing.
However, the experience of all previous experiments of localism is that while Ministers say, “Yes, this is a wonderful idea. We want to do it”, pressure starts to be applied to particular things. They want to have a mechanism whereby they can say, “It is, of course, your decision. However, we want you to make sure that these things happen”. Gradually, the list of the things that must happen gets longer and longer and the list of areas of discretion gets shorter and shorter.
When I saw the proposal for a mandate to be in the Bill, I thought that that was the mechanism whereby on the one hand Ministers will proclaim that they have no involvement in these decisions and say that they are all local decisions, but on the other hand this will enable them to ensure that certain things still happen because they are being subjected, as elected politicians, to pressure to make sure that they happen. That is why the amendment of my noble friend Lord Warner, which would restrict the extent to which this could be done, is very important. If we do not have an amendment of that sort in the Bill, I can tell you now what will happen; every single pressure group, voluntary organisation and lobby will say, “We want included in the mandate”, which is being issued to the national Commissioning Board, “the following service. We will want to see it there.”
For any sensible Minister the simple answer to all this is to write an extremely long mandate that covers all those points rather than sticks to them. If they were obliged to be limited to just five or six or another small number of issues, that would be extremely salutary. It would stop the creep that would happen. However, I suspect that the Government are not going to say suddenly, “My goodness, the noble Lord, Lord Warner, has come up with an excellent idea. Why didn’t we think of that? We must accept it, of course”, because unfortunately that is not always the way in which government Ministers react. They will stick to the letter of the Bill without those specifications. They will say, “Well, why five? Why not 10? Why not 12? What about three?”. All these different things will be argued as an excuse for not doing it. You will then get the drift and the pressure to say that more and more things must be added.
Amendment 100A is so important because there must be parliamentary scrutiny of what is happening, because this will be the mechanism that drives decision-making in the NHS. It is not going to be a pure version of devolution, localism and autonomy; this is going to be done through the mandate. The mandate is then going to be the most important document that drives the NHS at any one moment. That is why parliamentary scrutiny is essential. Parliament must have the opportunity not just to see it and to know what is being done in the name of the public but to comment, amend, or put forward amendments and have the Government respond to them.
I therefore hope that when the Minister responds he will accept not only the principle of my noble friend Lord Warner’s amendment but the principle of detailed parliamentary involvement in this process in the amendment of my noble friend Lord Hunt of Kings Heath.
Baroness Williams of Crosby
My Lords, I will comment further on Amendment 98. One of the great qualities of the amendment is that it would oblige all of us to confront directly the huge strain between the rising demand—4 per cent a year over recent years—for National Health Service services, and the limitations on resources to which the noble Lord, Lord Harris of Haringey, has eloquently referred. It is vital that if we are going to carry the public with us in making the changes, which will be required regardless of whether the NHS survives or not, to service configurations, to the way in which ancillary professions are used, and to the whole range of community activity and help, we have to get the whole of the public and Parliament to understand how acute the pressures on resources are and how very necessary the need for change is.
It is therefore vital that we take due responsibility as Parliament and as a whole nation for the changes that will be required. All of us in this House recognise that service configuration is going to be the key way in which we deliver quality services with straitened resources. However, we should not pretend to ourselves that service configuration will be anything but extremely difficult. It will be politically difficult in particular, for the reasons which the noble Lord, Lord Harris of Haringey, pointed out. Any time you configure a service in a way that, for example, results in the closure of hospitals or other medical centres, you will encounter huge public resistance, because the public like, as is very much evident, exactly what they have. It is very sad that we have to explain, regardless of how we vote on this amendment or any other amendment, that there is this straitened position between resources and demand.
That is why Parliament, too, must accept its responsibility and not press for changes that simply cannot be afforded. Unless we have an amendment like Amendment 98, which is fundamentally part of the whole parliamentary structure within which the NHS or any other form of health service has to operate, we will not start on the crucial business of persuading and training the public as well as the medical profession and ourselves about the absolute necessity of fundamental change, regardless of the actual management structure that we happen to have at the time. I personally believe the NHS has a remarkable management structure. There are others who believe that it does not, but the one thing one can say is that the crucial issue is not so much management structure as how one actually handles the massive process of change that now confronts us.
Lord Warner
My Lords, I regard this amendment as one of the most important building blocks in the Bill, although I have to confess that I am not sure that it will attract the same enthusiasm from the Government or their Civil Service advisers. The amendment is based on my own experience as a Minister, especially when dealing with the financial meltdown of the NHS in 2005-06—which I have recorded for posterity in a book that I have written on the subject. Since I believe that the NHS is heading for another financial meltdown, Ministers, especially in the Treasury, might give some serious thought to the proposal in Amendment 102.
There is a very good book about the history of the Audit Commission called Follow the Money. I think that we should do a bit more following of the money so far as the NHS is concerned, and not simply rely on things like outcomes frameworks. At the core of this amendment is the rather simple idea that there should be a minimum set of standardised management accounts covering finance, performance and asset use, applying to all bodies providing NHS services that spend more than £500,000 a year. I have put that fairly arbitrary figure in the amendment so that bodies which are relatively modest spenders are not brought into these requirements. It is a matter for negotiation whether that amount is the right one to set. However, with the bigger, higher spending bodies, we need greater standardisation of management accounts because we need to know more than we know now. At present, we cannot easily compare the performance of similar bodies in terms of how they spend our money, how this expenditure relates to what they produce, the value for money they give and how well they use public assets.
It has often been forgotten, under successive Governments, that the NHS is, in effect, a major landowner and user of public buildings. The real estate footprint of the NHS is far too large for the buildings on it and the use that is made of them, and I will give a little data later in my remarks. There is, at present, little rigorous assessment of whether the NHS holds on to land unnecessarily, how much of its accommodation and equipment is used well or intensively, or how much of the buildings or land is left vacant. Work done in the London SHA, after my time as a Minister, shows how scandalously poorly the NHS uses land and buildings. There is no reason to believe that the situation is different in other parts of the country. I am happy to give the Minister and his boss chapter and verse outside this debate. However, in a nutshell, in non-foundation trust sites in London, only some 18 per cent of NHS land was built on; another 18 per cent was underutilised; and some 25 per cent of the buildings were functionally unsuitable for the purpose for which they were used. I have given you a snapshot of London two or three years ago, but it is probably not much different now.
Although we have a great deal of data on the performance of acute hospitals, much of it cannot be related to expenditure because service line accounting—in the jargon—is still not used in most hospitals, especially outside the foundation trust sector. However, acute hospitals are a positive treasure chest of performance data compared with community health services, mental health services and primary care, where any relationship between what they spend and what they deliver is more conspicuous by its absence. Any public company which tried to run its affairs with the same financial performance or asset data as the NHS does would be insolvent very quickly. We should take the opportunity of this Bill to do something about moving to some standardised management accounts for all but the smallest providers.
If this amendment is passed and this requirement is put into the Bill, it would improve commissioning, choice and competition. Without the data that would be produced by implementing the amendment, it is very difficult to secure effective commissioning, effective choice and effective competition. One simply would not have the data to compare on a standardised basis the performance of many of the bodies involved.
I recognise that some of your Lordships do not favour competition. It is certainly easy to resist competition in the NHS if it remains a largely data-free zone in terms of finance and performance. Good commissioning and patient choice become very difficult to deliver if one does not have that information on a standardised basis.
I hope that the Government are prepared to give proper consideration to this longstanding problem. I do not regard this as a party-political issue; this is all about good governance and running the NHS more effectively on behalf of those who are funding it. I beg to move.
Baroness Williams of Crosby
My Lords, it would be very helpful if the Minister could say something about the proposals with regard to the accounts and financial statements made by CCGs, which will obviously depend a great deal on the guidance from the board.
I am concerned that a number of clinical commissioning groups without any great knowledge of how to deal with audit and financial problems will emerge. You could quite quickly see a commissioning group getting into difficulties, not because it was not performing well but because it had very little awareness of requirements relating to information on its conduct in relation to assets and finances that was needed to establish its standing as a proper clinical commissioning group. I am concerned because there is already some evidence of clinical commissioning groups seeming rather unclear about the accounting standards that they have to live by. It is important that the board makes very clear indeed what its expectations are and that it involves, as the amendment would require, the National Audit Office, which will become—and in some ways is already—a fundamental arbiter on the quality and standards of accounting practices.
I hope that the Government will consider the amendment carefully and that the Minister will let us know what the Government’s intentions are with regard to setting out the standards that they expect from clinical commissioning groups and that the board should lay down. The Bill is currently uncommunicative on the subject.
The whole process of procuring the pharmaceutical and other products that a commissioning group will need is always problematic. It is crucial that what is required is clearly set out, and that there is an indication under which we can compare one clinical commissioning group with another.
Baroness Cumberlege
My Lords, I should like to probe the amendment a little further because I think that it has a lot of merit, especially when one considers the PFI arrangements that have so destroyed the financial situation within the NHS.
I should like to ask the noble Lord, Lord Warner, about the accountability of the body. As I understand it, it is to be independent. I presume that he means independent in its membership as well as the way in which it works. I wonder where that accountability lies, whether there is a relationship with the business plan of the Commissioning Board and how the noble Lord sees the body working. Will the panel run for years and years, or will it exist just to set the standards at the beginning? Perhaps we could have a fuller picture.
Baroness Williams of Crosby
I listened very carefully to what the noble Baroness, Lady Murphy, said, and I broadly agree with it, with one slight exception. She said that she did not think that there were many examples around the world of particularly good integrated practice and then she mentioned that there had been considerably activity of this kind in some mental health trusts in the UK. I want to throw a slightly more cheerful note into what has been a slightly gloomy debate. As it happens, this morning, a Canadian doctor friend of mine brought to me the latest report of the Commonwealth of Massachusetts study on relationships between doctors and patients. It is a comparative study of 11 medical systems throughout the world. I shall not keep the Committee for long, but I will read a couple of the findings that date from November 2011. It was a major study of thousands of patients—more than 1,000 in Britain, a couple of thousand in the United States and so on—at the time that the report was put together at the end of 2009. I shall be very quick, but I think it is quite remarkable. In patient engagement in care management for chronic conditions, which is something we have been talking about a great deal when talking about integration, the country that comes out the best of the 11 is the United Kingdom. In shared decision-making with specialists, the first is Switzerland, the second—
Baroness Murphy
I am very well aware of the wonderfully heartening Commonwealth of Massachusetts report, but the point I was trying to make is that we are marvellous at health and social care integration in this country compared with many others. Having spent my life doing it, I am quite proud that we can say that we do it better than most. But my point is that if you want cost-effective purchasing of care systems that promote it, we cannot point to anywhere in the world where there are very good, efficient systems. Kaiser Permanente is a very restricted system for its employed clients in California. We do not have the systems that financially promote a drive towards those systems. It is not that we do not do it, but that we do it in spite of, not because of. However, the report is most heartening.
Baroness Williams of Crosby
I would not disagree with the noble Baroness on that issue. I agree with her, but I am trying to make a different point, which is that I think we have been left with, by sheer good fortune, if you like, a much better starting point for serious integration than many other health systems. It relates also to Amendment 203A, which was tabled by the noble Baronesses, Lady Hollins and Lady Finlay, about the role of competition, about which I am rather less confident than some others.
I shall mention two other findings from the report because it is a remarkable and impressive story. On the doctor/patient relationship, there was a question about how far patients felt that they had close relations with their doctors and the ability to speak to them and to discuss their cases with them. Once again, quite remarkably, the United Kingdom comes out second to Switzerland in the 11. To take a final and very surprising finding in this study, on medical, medication or lab test errors in the past two years, the figure for the United States was 22 per cent, for the Netherlands it was 20 per cent and for the United Kingdom it was 8 per cent. It is extraordinary that we so rarely blow our own trumpet in this country, and very occasionally, we should.
Baroness Thornton
The noble Baroness, Lady Williams, is right. It is a great report, and I have read it. Would she care to join me in speculating about why the department has not made it its headline story?
Baroness Williams of Crosby
I think the answer to that had probably better come from the department rather than from me, but I am consistently surprised by the failure, not of this Government but of Governments of the United Kingdom for a long time, to say what the real achievements of the NHS have been and to recognise that outside this country it is widely regarded as perhaps one of the most outstanding health services in the world. It is worth saying that from time to time because we have 1.2 million people employed in the NHS and they deserve a great deal of the credit for having maintained a high standard in the face of very considerable financial pressures, even in the past. We have always had among the lowest expenditures per patient in the 11 highly industrialised countries, with only a couple of countries—Australia and New Zealand —spending less than we do.
There are two points to this argument. First, we are in a much better place to integrate care than we seem to think we are because we have already clearly established relations of trust between doctors and patients, and between hospitals and doctors, to an extent that other countries clearly regard as enviable. Secondly, one has to ask why we suppose that competition is a better way to deal with healthcare than are integration and collaboration. There is one area where competition is clearly crucial, and I accept that. It is in innovation and in trying out new ideas. None of us would in any way be opposed to that happening. However, I would like to put it on the record that if we are going to move in the direction of collaboration and integration, we have a very strong base on which to do it and we have the makings of something very impressive and important. The makings of that appear to be stronger in this country than in most others.
Lord Warner
I would not normally have interrupted the noble Baroness, but this canard that somehow integration is incompatible with competition has to be challenged. I refer the noble Baroness to the King’s Fund’s work on integration and its citing of Kaiser Permanente operating in a competitive market and doing very successful integration. I would also refer her to the peer-reviewed article by Zack Cooper of the LSE in a recent edition of the Economic Journal, which makes it absolutely clear that competition under the previous Government both improved patient outcomes and reduced deaths.
Baroness Williams of Crosby
I have actually gone in to the story of Kaiser Permanente very carefully. It is not surprising that if you choose the very best example in another country you can make a favourable comparison. I am talking about the outcomes for a whole population rather than a particular part of a population. I have said already that there are certainly areas where competition can play a very important part—I referred to innovation and new ideas—but I am simply putting on the record that if you look at the comparison between the health services of the 11 most advanced, richest and most industrialised countries in the world, the combination of integration and competition that we have here appears to have rather better outcomes than in those countries that rely much more heavily on competition such as the United States.
Baroness Wheeler
My Lords, I will speak briefly to my Amendment 135B. Since the Future Forum report, there is a renewed focus on integration in the Bill, and we welcome that. However, as a number of noble Lords pointed out at Second Reading, there is a need to define what we mean by integration. Government amendments largely reinforce the benefits of integration to the NHS rather than looking at the system from the perspective of health and social care, service users and using integration to develop person-centred services. My amendment and others in this group seek to begin to address this.
Since most people with long-term and complex health needs also depend on social care services in order to maintain their health, well-being and independence, it is crucial that the Bill ensures that measures to increase integration also extend to social care. In the NHS, integration has primarily focused on integration of primary and secondary healthcare and to integrate back office support such as IT, human resources and estate management in order to make efficiency savings. While both of these aspects of integration are important, they will not lead to the system transformation hoped for in the Government’s Liberating the NHS White Paper. We need to continue the now reasonably well established place-based approach to integration which brings health and social care together, in which the totality of public resources is directed to develop seamless services which support individuals. As such, they are far more likely to lead to system reform in which all public services focus on achieving better outcomes for individuals and communities.
Local councils have an established record of commissioning for people with complex and ongoing health and social care needs: in particular, homeless people; people with mental health problems, learning disabilities, AIDS/HIV and dementia; and children’s health. It is vital that commissioners of services for people with complex health and social care needs understand the important contribution of housing, leisure and recreation, access to education and other mainstream local authority services to supporting vulnerable people to remain healthy, independent and productive members of the community. Noble Lords have pointed out that clinical commissioning groups will have little understanding or experience of commissioning the complex package of support required. I would therefore emphasise the importance of joint commissioning or delegating commissioning to local authorities and hope that the Minister will respond positively to this.
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Lord Kakkar
My Lords, I would like to ask the Minister what the potential relationship is between clinical senates and an expansion of academic health science networks, or academic health partnerships, that may be proposed from the ongoing chief executive of the NHS review of innovation. It is suggested that that review may endorse an expansion of the current academic health sciences network. I must remind noble Lords of my own declaration and involvement in University College London Partners academic health science centre.
As I understand it, the purpose of clinical senates is to provide support in helping clinical commissioning groups to draw on expertise available from a broader group of clinicians and disciplines within their region to help inform ultimate clinical commissioning decisions. However, if the proposal that the current network of five academic health science centres is expanded into a network of broader academic health partnerships, serving a population of about 3 million to 4 million for each partnership, within those partnerships there would be a broad range of academic and other disciplines. They would be represented in a health partnership or network fashioned on the current academic health science centres to be able to deliver expertise and advice on commissioning and provide the opportunity to aid in a transformation of health practice pathways of care, to provide a potential home for the education and training functions that will need to be rolled out at a sub-national level, and also promote interest with regard to research and innovation.
Under the circumstances, if academic health partnerships were to be expanded and promoted as a result of the ongoing innovation review, could not the responsibility suggested for clinical senates be undertaken by the academic health partnerships and current academic health science centres? This would avoid the need for yet another grouping or layer of bureaucracy to be created within the systems responsible for the commissioning and provision of health services.
Baroness Williams of Crosby
My Lords, if I may, I will pursue what has been raised by the noble Lord, Lord Kakkar, and also, in some ways, by the point made by the most reverend Primate the Archbishop of York. I could not help thinking that perhaps protesters count among the networks and the people responsible for running St Paul’s count as part of the commissioning group. With that in mind, I will pursue also what was said by the noble Lord, Lord Hunt. If you look at his Amendment 224A(6), he helpfully refers to the clinical senate having,
“the function of establishing and maintaining a system of clinical networks”,
in the area. I think that should be applauded. I am very impressed by the way in which networks at their best not only extend information very widely among patients with a chronic condition but bring the patients into the discussions about what should be done in their situation. It becomes a huge educational and, indeed, morale-boosting process. So on subsection (6) I think that the noble Lord, Lord Hunt, has put his finger on something that could be very important and where the clinical senate would give clinical backbone to the deliberations and thoughts of the clinical network. That is almost, I suppose, what we are all trying to achieve.
I am not so clear about subsection (8) of Amendment 224A, where the noble Lord, Lord Hunt, has effectively given the clinical senate something of a veto over the commissioning group. I am not sure that that is wise, as that plays right into what the noble Lords, Lord Patel and Lord Kakkar, were saying about creating yet another layer of bureaucracy. I think that would be unhelpful and might indeed feed into a certain self-importance on the part of people who call themselves senators, whether clinical or merely political.
I would like to ask the Minister, bouncing off the amendment from the noble Lord, Lord Hunt, whether, looking through that amendment, he does not find parts of it that are helpful, useful and constructive. It would make a clinical senator a significant part of the whole structure of the relationship between patients and clinicians. Whether he needs to press ahead with provisions that would bring in the senate as a requirement of the decision-making process of the commission is much more questionable. I am playing a kind of ping-pong, in which the ping of the noble Lord, Lord Hunt, has to go to the pong of the noble Earl, Lord Howe.
Lord Hunt of Kings Heath
Can I accept the invitation to come back on this? The reason why I am interested in the other bit of my amendment is that it is essentially about the strategic leadership that needs to be given to reconfiguration issues. When we debated the powers of the Secretary of State, a number of noble Lords complained that Ministers intervened in reconfiguration, which usually means the closure of services, perhaps emergency services, and their concentration around specialist hospitals. They are very contentious. As noble Lords have observed, MPs seek ministerial intervention, which is perfectly normal and democratic. In the new structure, there is no one to really lead this at a semi-national or regional level. The CCGs are far too small; they will not be able to come together to sort out how regional services should be operated, or the number of A&E departments you need within a region. The national Commissioning Board is far too big; it is national. That is why I think that there is room for some regional mechanism. The clinical senates seem the nearest that we can get to that. I do not see them as being like the old-style regional medical advisory committees; I see it as being a rather more dynamic process than that.
Baroness Williams of Crosby
I thank the noble Lord for his typically articulate and thoughtful response. The idea of clusters coming together in what one might call semi-regional groupings is a better way forward than bringing regional senates in as a way to resolve the problem that he rightly talks about of bodies being too small or too large.
Baroness Cumberlege
Can I also ask the noble Lord, Lord Hunt, about his amendment, in which he proposes setting up another very strong bureaucracy? It is a corporate body, known as a clinical senate; I presume, because it has a proper officer, that it will have a range of officials. It is suggested that it should revalidate doctors within the area, but I am wondering how that would work with the GMC and others. It will maintain a whole system of clinical governance within clinical commissioning groups and also authorise some of the clinical commissioning groups.
I can understand the noble Lord’s wish for some strategic leadership. I have been a regional chairman—and I have to say that our medical advisory groups were really excellent compared to those of south-east Thames. We had really good ones. But I am anxious about this matter. I sense that this is simply a probing amendment, because the membership of what the noble Lord proposes would be extremely bureaucratic. I understood that these were advisory boards, and that it was to try to get some of the clinical input from the acute centre into the commissioning groups so that they understood perhaps more clearly what they were commissioning in terms of acute services.
I very much look forward to what my noble friend is going to tell us as to how he sees this issue. But I must say to the most right reverend Primate—I think I have got that right—that if he can manage the Anglican Church he really could manage the National Health Service.
Baroness Williams of Crosby
I have a quick initial question. If a CCG happens to be in the area of, say, a university medical school or medical hospital, how would the process of picking who would be on the clinical senate be handled?
Earl Howe
As I have mentioned, the senates will come under the wing, so to speak, of the NHS Commissioning Board. They will effectively be part of the board. While we have yet to receive details of how the board will configure itself sub-nationally, it will clearly have to do so in ways that make sense of the local commissioning and provider architecture in an area so, where you have a university, it might well be that medical experts from that university will be part of the senate. It is too early to say, but I look forward to updating my noble friend as and when I have further particulars.
Lord Patel
My Lords, I will be brief in supporting the amendment of my noble friend Lord Kakkar. I also support the comments just made by the noble Lord, Lord Hunt. I think it vital that local commissioning groups are accountable and conduct themselves according to the highest principles of public life. CCGs are legally responsible for the quality of their decision-making processes. Therefore, they need to be able to stand up to judicial review. The individuals making those decisions should be required to adhere to the highest standards of conduct for public officials.
I know that, to a degree, the Government recognise this by raising the structures of CCGs—namely, the inclusion of lay and other professional members on governing bodies, the requirement for compliance, the principles of good governance and the pledges about public access to documents and meetings. While this work is being carried out, however, we need clarification about the methods of identifying and selecting lay and professional members of governing boards.
The Bill also states that CCGs may pay members of the governing body such remuneration and allowances as it considers appropriate. Full autonomy may not be appropriate as it might undermine public confidence in the ability of members of CCG governing bodies to act in the public interest. Some degree of national guidance about fee scales might also be valuable.
Baroness Williams of Crosby
I will speak to Amendment 101A, in my name and that of other noble Lords. Before I do, I will say one word about the amendment spoken to by the noble Lords, Lord Kakkar and Lord Patel. I was pleased to hear what they both said because in a way it reflected the crucial nature of trust in the medical experience, the relationship between the patient and the doctor. That is at the centre of the ability to create a successful health service. They were absolutely right to emphasise that. Without going into detail, it is fair to say that the Nolan principles are becoming a kind of gold standard of the behaviour of people in public life. It is eminently suitable that that gold standard should be openly applied to those who are members of clinical commissioning groups at the local level. That will go some way to retaining the level of trust that exists between the medical profession and citizens.
Turning to Amendment 101A, we do not want to go over the ground again about membership of the board. This is, in a sense, the board in a miniature—the membership of the clinical commissioning groups. It is crucial that clinical commissioning groups are very close to their communities. The reason that my amendment refers in particular to a representative of the nursing profession is because almost nobody is ever closer to a local community than nurses. The information and knowledge that he or she carries can be vital to the working of the local clinical commissioning board. Also, nurses tend to be the recipients of any complaints there may be, so again it acts as a two-way channel. I also hope that we can bear in mind the importance of somebody with public health experience on a clinical commissioning board.
I make one other, final remark. As evinced by amendments later on that we will come to discuss, the major guarantee of the behaviour of a clinical commissioning group will be transparency. I hope that when we come to look at the extent to which members of boards should declare any interests that they may have, and should be recused from any decision which might bear upon that interest, we will recognise that this is one of the most important elements in dealing with the point that the noble Lord, Lord Hunt, legitimately raised. The real concern is about the interests of individual GPs or groups of GPs in their own particular business—so to speak—and the way that that must be made absolutely plain before the clinical commissioning group takes a decision that can have any bearing upon the individual interests of individual members of the board.
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Baroness Finlay of Llandaff
My Lords, I rise to speak to this amendment, which is also in my name, and to support the other amendments in this group. They have the effect of ensuring that public health considerations and public health expertise are given due weight in the new arrangements set out in the Bill.
Public health covers three main domains: health improvement; health protection; and health service delivery. Public health specialists are trained and skilled in interpreting data and information about populations, understanding health needs and securing the services required to meet those needs. That expertise is vital to having effective commissioning at every level, particularly that of the NHS Commissioning Board, which will have the overarching responsibility for commissioning health services, so as to ensure that the services are effective, appropriate, equitable, accessible and cost-effective. It therefore seems only sensible to make sure that that expertise is incorporated at board level.
The Commissioning Board exists to secure and improve the health of the population through the NHS services it commissions, and indeed through the services which are not NHS-provided, if I have understood this Bill correctly. To do this, the board would benefit from public health input. Public health specialists have an unparalleled overview of a community's need for health services and how they are best commissioned, including changing, adapting or even decommissioning services which could work better in other ways. The role of a public health specialist would also be to provide the essential expertise needed to commission preventive services, such as screening and immunisation, and to look at the evidence relating to those services. The board may need the courage to decommission some of those services as well, or to substantially alter the way that they are delivered.
It would be inappropriate to say that this is going to be too expensive, because a public health specialist should pay for themselves many times over with their presence on the board. It is only by having such an expert at board level that we can ensure their expertise is incorporated into decision-making, rather than only feeding into the process in an advisory capacity.
Baroness Williams of Crosby
My Lords, one of the most interesting aspects of the proposals in this Bill is the greater status to be given to public health. I think we all recognise that for some years public health has been something of a Cinderella in the medical establishment. To have public health lifted, as it should be, on to board representation seems to me absolutely central in our attempt to put greater accent on prevention, education and information; there are future amendments by some of my noble friends on some of those issues. I wish to say very briefly that I think that this amendment is absolutely right. It is crucial that public health recognition is given at board level, and I hope we can echo that in having it also represented in the clinical commissioning groups as they emerge.
One other question to raise in relation to public health, which we have been considering very carefully, is how we deal with chronic illness. Chronic illness is obviously not unrelated to lifestyles and life behaviour, so here again, raising the influence of public health in the attempt to bring about a healthier lifestyle among our fellow citizens and ourselves is absolutely essential. I therefore completely agree with what has been said by the noble Baroness, Lady Finlay, and the noble Lord, Lord Warner, in moving this amendment: that it is vital that public health be represented at the highest level.
Lord Patel
My Lords, I have added my name to the amendment, and I strongly support it. It is absolutely crucial that a public health specialist is a member of the NHS Commissioning Board. I note that protection and improvement of public health is one of the two crucial functions imposed upon the Secretary of State for Health by the Bill, and in several places. Three different bodies will be involved in discharging this function: the board, the commissioning groups, and local authorities. It is therefore essential that each has a public health physician at board level to do so. Effective commissioning requires expert understanding of populations and the diseases they might get, as well as their health needs and how these can best be met.
There are major public health roles for the NHS Commissioning Board, including the direct commissioning of services, for which public health specialists’ expertise needs to be embedded in the board’s management structure. The NHS Commissioning Board will continue to manage primary care contractors, hold the population registers which make screening programmes possible—as the noble Baroness, Lady Finlay, mentioned—set the policy direction and operating framework of the NHS, and oversee major commissioning decisions and plan commissioning groups.
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Baroness Williams of Crosby
My Lords, if the noble Baroness, Lady Cumberlege, will allow a moment’s interruption to her speech, I promise to give way. It is very important to state that a number of us who have tabled amendments to this clause, including those of us who have expressed a desire for it to be omitted, did indeed inquire whether it might not be wise to try to discover more about the precise meaning of the clause. There are some arguments among lawyers about its effect and about whether it should be taken together with Clauses 1 and 10, to which it is clearly very intimately related—a point raised by the noble Baroness, Lady Jay, in her role as chairman of the Constitution Committee. Therefore, we must stand accused of having asked the noble Earl, Lord Howe, whether he would be willing to consider taking this group together, not forgetting the long debate that we had on Clause 1, in order to find out whether there is common ground about their precise meaning, their weight and their relationship with one another. The matter will then of course come back to the Committee for wider consideration.
I hope that the Committee will recognise that, with such a difficult balance of legal opinion, it may be sensible to discuss the issue further before bringing it back to the Chamber for the continuation of the Committee stage. In fact, what I thought the noble Lord, Lord Warner, was most eloquently asking for was that the clause be taken away for reconsideration. He went on to say that that might be a good way to deal with the matter. We are in total accord with the view of the noble Lord, Lord Warner, and I therefore ask him to allow us to continue with that reconsideration.
Baroness Cumberlege
I am very grateful to the noble Baroness, Lady Williams, who has put the matter eloquently and correctly. I am very much in favour of my noble friend’s wish to try to get some negotiation. As the noble Baroness said, many of us feel that that is the way forward.
This is a difficult issue. It is trying to get the balance right between, on the one hand, the accountability and responsibilities of the Secretary of State, and, on the other, the freedom of those managing the service to do so without interference. Many of us are trying to achieve that balance.
I should like to refer to the letter that the noble Lord, Lord Warner, mentioned because I want to get it into Hansard. My noble friend urges us to consider three key factors in his letter and I quote the second one. He said that,
“we fulfil the policy intention that the Secretary of State should not be involved in the day to day operations of the NHS. Ministers should set the overall strategy, hold national arms-length bodies rigorously to account for their performance, and have the requisite power to intervene if the system is not operating effectively”.
Those are my views entirely.
I am now going to say something that I know is extremely unpopular in the Palace of Westminster: politicians are really neither loved nor trusted by the public to a great extent and I have to say also that they are seldom admired by those working in the NHS. There have been too many decisions that have been taken without any evidence to support them, resulting in very long delays in things such as reconfigurations. Those delays have jeopardised patient care. Reversals have been made at the last minute, ignoring well founded clinical advice from clinicians saying to us that the service is unsafe, yet the position of an inadequate, unsafe hospital or service continues because of political interference. That undermines the confidence of managers to manage.
I want to mention Kevin Barron, who is the Labour MP for Rother Valley—
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Lord Harris of Haringey
I am sorry; I hear someone behind me saying that that is not so. My experience in my 12 years of leading the national consumer organisation representing patients in the NHS was that that was precisely the circumstance in which many people went to law. They went to law because they wanted to get the information. That was the fact, and I suspect that that is the reality.
Baroness Williams of Crosby
Perhaps I may add a few words on an aspect that was touched upon only a moment or two ago by the noble Lord, Lord Lucas—the role of people who act as whistleblowers, particularly regarding patients who, for one reason or another, are not capable of standing up for themselves, are perhaps in institutions where they get little attention paid to them, and are not much listened to. They would be heavily dependent on the willingness of NHS staff to blow the whistle when bad standards are being allowed to continue.
One thing has always worried me about the NHS. As a parliamentarian of many years’ standing, I have received many letters from junior members of NHS staff asking me to look into some aspect of a hospital or care home in which they work, and almost invariably saying at some point in the letter, “I dare not do this myself because my job would be at risk”. This is a very serious aspect of the amendment of the noble Baroness, Lady Masham, but we have not talked about it very much at all.
I tend to favour the idea proposed by my noble friend Lord Mawhinney for having an element of mediation, as well as an element of court behaviour, in the way in which we deal with such cases. However, it rests on us all to give high priority to thinking of the ways in which we can protect whistleblowers and distinguish the genuine whistleblowers from those who are complaining merely about their personal position. For example, if we included private as well as NHS hospitals and care homes, the kind of position that the noble Baroness, Lady Oppenheim-Barnes, talked about—she described a terrible case with regard to her daughter—would not arise so readily.
I ask the Minister to say something about the view that mediation is one way forward, as well as court cases. At least as importantly, perhaps he can say whether the General Medical Council or others would now seriously consider protection for whistleblowers within NHS staff, who are often the most effective inspectors that we can find—much more effective than people with no clear knowledge of the way in which medical and health services work.
Baroness Hollins
Perhaps I may raise a couple of issues that have been touched upon. The first is that I do not know how far the consultation that is looking at the duty of candour will tease out the role played by whistleblowing. I should like some clarification about that.
The General Medical Council’s document, Good Medical Practice, in paragraph 31, makes it clear that doctors must be honest and open and act with integrity. I mention that because my noble friend Lord Walton spoke about the GMC’s role and said that he was not sure how far the medical defence unions currently adopt the same approach to encourage doctors, when they are aware of an error, to be open and honest. I decided to telephone my medical defence union before this debate and ask it for its current advice. It said that it refers doctors to Good Medical Practice and reminds them of paragraph 31, which states that they must be honest and open and act with integrity. I hope that the House will be reassured to hear that.
In my experience, a culture of openness and honesty leads to a culture of learning. That point has been made by a number of noble Lords. We should not be afraid of the idea that apologising will in some way lead to a greater culture of litigation. It is certainly my experience that being open and apologising does not necessarily imply negligence; it reflects the fact that something harmful has happened and that the lessons from mistakes must be learnt from in order that other people will not be harmed by the same mistakes in the future. That is what this is really about.
Baroness Williams of Crosby
I am grateful to the noble Earl for giving way. Before he leaves the commissioning issue, would the conditions on candour laid down in the contracts apply to contracts with new providers who came from the private sector as well as to those from the old NHS sector?
Lord Turnberg
My Lords, I had not intended to speak to these amendments, but it is clear that we have had problems associated with inequalities for a very long time, and they persist. Many years ago, we had the Black report on inequalities in health, which was a major landmark, and since then we have had Sir Michael Marmot and his marvellous book The Status Syndrome pushing away at the inequalities in health, and my noble friend Lord Layard and his book on happiness and the inequalities in life in general. There is no doubt that the effects of inequalities are very severe. We see quite marked differences in health and life expectancies in communities adjacent to those where life expectancy is very high. We have some communities where several years of life are lost. The effects are very severe indeed. The reasons why there are such inequalities are multiple. They are certainly way beyond the ambit of a health Bill. Clearly there are factors outside health services that make the difference. Nevertheless, it is important that we have within a health Bill recognition of that fact and of the need for those within a health service to take account of inequalities and make recommendations as a result of them, so I am very much in favour of these amendments. We should have them in the Bill.
Baroness Williams of Crosby
My Lords, I am grateful to the noble Baroness, Lady Thornton, for so clearly analysing the different amendments. I shall keep to those that are grouped together. As she said, the gravamen of the amendments is towards the view that the duties of the Secretary of State and, indeed, of other bodies involved in the NHS should be strengthened and put in rather more forceful terms. Whether one prefers “require” or “with a view to”, those words strengthen the position with regard to health inequalities from the rather low-level pressure of “with regard to”.
I say right away that my noble friend Lord Howe said, and I thought said very strongly, that this Bill contains a great many references to inequalities. It is also absolutely true that, as the noble Lord, Lord Turnberg, said, doing something about them is a very difficult exercise. One of the striking findings of the wonderful book The Spirit Level, which I have referred to before in this House, is that where there are grave inequalities in society, there are almost invariably grave inequalities in health as well. As the noble Lord, Lord Turnberg, said, the two are very closely related. Blame cannot be put entirely, or even largely, on the health service for the continuing inequalities. We know that there are very grave inequalities, both geographical and generational, between different parts of our society. To take only one example, lifestyles that feed bad health tend to be rather different between one section of society and another. I shall quote the words of the King’s Fund on the attempt made by the previous Government, to whom I give due credit, to deal with inequalities using the quality and outcomes framework. There was not much effect. The King’s Fund dismissed the whole effort with slightly contemptuous phraseology. It referred to,
“a medicalised and mechanistic approach to managing chronic disease”,
which is fairly damning. In addition, we know that economic differences between regions are very often reflected in health outcomes and, therefore, that looking at health outcomes has to be related to other outcomes: educational, income and social.
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The Lord Speaker (Baroness D'Souza)
My Lords, I would like to remind the Committee that if either Amendment 3 or Amendment 4 is agreed to, I cannot call Amendment 5 by reason of pre-emption. I call the noble Baroness, Lady Williams of Crosby.
Baroness Williams of Crosby
I apologise for the slight delay in rising to my feet—my understanding was that the Minister was proposing to start the debate by making a statement. I apologise for delaying the House. Let me say right away that I do not resile in any way from the amendment which the noble Baronesses, Lady Jay and Lady Thornton, the noble Lord, Lord Patel, and I have put down. We believe that it is important to have an absolutely solid basis by which the whole of the House and the public can understand exactly the accountabilities and responsibilities of the Secretary of State. It is therefore of great importance that this House, in this crucial Committee sitting, is able to reach a clear understanding of what those responsibilities and accountabilities are.
I very much hope that that will be possible as there are still legal questions about the particular meaning of both the amendment put forward by the noble and learned Lord, Lord Mackay of Clashfern, and the amendment put forward in the names of the noble Baroness, Lady Jay, myself and others. There are still difficulties and differences of opinion between legal voices about exactly what the forethought of those amendments is and just how clearly they lay out the responsibilities and accountability of the Secretary of State. Some Members of this House will recognise that one difficulty is that the Secretary of State is extremely anxious to avoid any further micromanagement of the health services because he believes that it would reduce professional discretion. I think that many of us sympathise with that argument.
The difficulty is that many of us also believe that the Secretary of State should have clear accountability for the very large sums involved in financing the NHS at present. We also have regard to the fact that there are certain crucial responsibilities revolving around things such as national emergencies for which we believe the public would expect the Secretary of State to be the person responsible. So on constitutional grounds, and on grounds of financial accountability and clear responsibility in certain areas of national concern, we are anxious to see that the Secretary of State retains those responsibilities. However, the possibility of drafting legislation which comprises both the issue of having no micromanagement and the issue of the crucial ultimate responsibilities of the Secretary of State has proved somewhat elusive. In that situation, I hope very much that the Government will consider pressing ahead with trying to draft acceptable legislation for Report stage, when I hope there can be broad agreement about what the responsibilities are. I cannot answer for my noble friend the Minister, of course, but I hope that he will give consideration to that request.
Perhaps I may quickly add three other considerations. The first, which I have mentioned already, is the area of legal ambiguity. I think that all Members of this House will have heard clashes of opinion about the precise meaning of the amendment before us. I regret that, and I hope the legal profession will forgive me for saying that when there is more than one lawyer in a room there is very often more than one opinion. That is exactly the situation in which we find ourselves. Secondly, many of us feel—I would certainly speak for myself and my party, and this point was raised by the noble Baroness, Lady Jay—that it is absolutely critical to look at Clauses 4 and 10 together with Clause 1, rather than trying to take them separately. They are intimately interrelated. Many of us recognise that to make a change in Clause 1 without taking on board the implications of Clauses 4 and 10 would leave us in a world of deep twilight uncertainty.
The third issue is perhaps a bigger one; perhaps it constitutes a vision that I profoundly hold. I think we all recognise that the NHS is deeply cherished in this country. It is something to which people cling, as they find themselves facing financial hardship, as one of the few certainties and areas of trust that they can rely on. However, we also know without any doubt of the essential need for change in the NHS—my noble friend the Minister and others have made this absolutely clear—if we are to be able to finance an aging population, and not least, although we often neglect this, the very welcome survival of far more people with chronic sicknesses than used to be the case even 20 years ago, all of which lays heavy responsibilities on the health service. Because of that, I for one feel strongly that the greatest prize that this House could give to the future of health services in this country would be to reach a broad political consensus on the issue, so that the NHS and other health services, as they go forward, find that they are based on a solid rock of acceptance and consensus that will carry us through many of the ups and downs that we are bound to face in the next few years.
Earl Howe
No, my Lords, there are no closed views. That is the reason why I suggested earlier that it was time to reflect and engage in discussions in the spirit of co-operation. I would not have said that if I had had a closed mind to them. There would not have been any point in the discussions. I simply wished to do noble Lords the courtesy of answering their questions and addressing the points that they had made. If noble Lords would rather that I did not do that, then we can make life easier for ourselves. I will certainly write to noble Lords if they would like to inform me afterwards that they wish to receive a letter. If they do not, I will not write. It is entirely up to them. I do not wish to make work for myself unnecessarily.
I have said that I believe the balance of advantage for this Committee lies in our agreeing collectively not to amend the Bill at this stage and I am pleased that there seems to be consensus around that view. I believe instead that it would be profitable for me to engage with noble Lords in all parts of the House, both personally and with the help of my officials, between now and Report to try to reach consensus on these important matters. I would just say to my noble friend Lord Marks that that includes the issues that he has helpfully raised this afternoon. I believe that he is right to associate Clause 4 in particular with the matters that we have been considering. Those discussions can be carried out in an informal way with interested Peers or in individual meetings in the House or my department. There is a place for either type of discussion. My concern is only that it is an inclusive process involving Peers from all sides of the House, and that will include listening to the views of the Constitution Committee should it choose to continue its valuable role.
With that, I hope that no noble Lord will feel cheated by the brevity of my contribution and I shall sit down.
Baroness Williams of Crosby
I am happy to withdraw my amendment given the statement made by the Minister. I also join the many people in this House who have said how much we appreciate his almost unending patience with us and his willingness to listen and engage in extremely informed and very intelligent debate. It gives me pleasure on this occasion to withdraw the amendment.
Baroness Williams of Crosby
My Lords, perhaps I may ask a couple of questions in this short debate and thank the noble Baroness, Lady Finlay, for her comprehensive presentation. This is a difficult area of the Bill. First, what happens with someone whose main residence is in one place but who is actually very dependent on out-of-hours care because of the nature of their job. There must be literally hundreds of thousands of commuters for whom the natural place they would like to go, due to the recollection of personal data and all the rest of it, would be the clinical commissioning group in their home area, but because they spend a great deal of time at work a long way away they will in fact depend on out-of-time services. I am troubled by the low quality of some of those services in comparison to what we might call mainstream NHS care.
The second question is perhaps easily answered. Can the Minister say something about the relationship of both new structures to NHS Direct? I am not clear as to whose responsibility NHS Direct will be. Will it continue as a kind of separate freewheeling service or be linked to a clinical commissioning group; and, if so, at which end of the spectrum would it be linked?
Baroness Murphy
My Lords, I am particularly concerned about the area-based issue because, like many people, I have been banging on for years about the importance of coterminosity between health and social services. However, my experience over the years has been that that has not made much difference to the co-ordination of care between health and social care.
I want to raise a point about the new arrangements. I understand that we are trying to move away from the old RAWP funding formulation, which has always been deeply unsatisfactory and open to political manipulation, to the funding of real groups of patient populations on a risk-assessment base. To achieve that, there is no doubt in my mind that you must have real people on real lists, whether or not that clinical commissioning group has a responsibility to provide for a population within the group. You must be able to work towards a funding solution for those clinical commissioning groups that reflects real need and moves away from the old area-based populations.
I think that that may be the response I would give the noble Baroness, Lady Finlay. I did not really understand the brief amendments in this group that were not specifically related to this question so I address my issues to that.
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Baroness Williams of Crosby
My Lords, perhaps I may just draw the Minister’s attention to the point raised by the noble Baroness, Lady Finlay, concerning pecuniary interests. In Regulation 13(4) of the NHS Commissioning Board Authority Regulations, there is an indication that the Secretary of State may be able to decide that somebody suffers from a disability because of his pecuniary interests. From that, can we assume that if any member of the authority has a pecuniary interest in a particular contract or a particular outcome, he or she will be expected to make their interest absolutely clear and to excuse themselves from the decision?